League of Women Voters of Michigan et al v. Benson

Filing 7

ORDER Granting #5 Application for Three-Judge Court. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEAGUE OF WOMEN VOTERS
OF MICHIGAN, et al.,
Plaintiffs,
Civil Action No. 17-14148
v.
HONORABLE DENISE PAGE HOOD
RUTH JOHNSON, in her official
capacity as Michigan Secretary of
State,
Defendant.
______________________________/
ORDER GRANTING APPLICATION FOR THREE-JUDGE COURT
I.

INTRODUCTION
Before the Court is Plaintiffs’ Application for Three-Judge Court pursuant to

28 U.S.C. § 2284(a). On December 22, 2017, Plaintiff League of Women Voters of
Michigan, along with several named-Plaintiffs, filed a Complaint for Declaratory and
Injunctive Relief against Defendant Ruth Johnson, in her official capacity as
Secretary of State for the State of Michigan.
Plaintiffs challenge the Current Apportionment Plan because they claim their
constitutional rights have been violated as alleged in the two counts in their
Complaint: Count I - First Amendment and Count II - Equal Protection. Plaintiffs
seek a three-judge court to be appointed under 28 U.S.C. 2284(a).

II.

THREE-JUDGE COURT
The statute, 28 U.S.C. § 2284 provides,
(a) A district court of three judges shall be convened when otherwise
required by Act of Congress, or when an action is filed challenging the
constitutionality of the apportionment of congressional districts or the
apportionment of any statewide legislative body.
(b) In any action required to be heard and determined by a district court
of three judges under subsection (a) of this section, the composition and
procedure of the court shall be as follows:
(1) Upon the filing of a request for three judges, the judge
to whom the request is presented shall, unless he
determines that three judges are not required, immediately
notify the chief judge of the circuit, who shall designate
two other judges, at least one of whom shall be a circuit
judge. The judges so designated, and the judge to whom
the request was presented, shall serve as members of the
court to hear and determine the action or proceeding.

28 U.S.C. §§ 2284(a) and (b)(1).
In a legislative reapportionment case, the district court must invoke the
procedures established in 28 U.S.C. § 2284 for convening a three-judge panel.
Armour v. The State of Ohio, 925 F.2d 987, 988 (6th Cir. 1991). “[O]nce it becomes
clear that there exists a non-frivolous constitutional challenge to the apportionment
of a statewide legislative body,” the jurisdictional requirement to convene a threejudge court under § 2284(a) is met. Id. at 989. The test for “non-frivolousness”
requires the district court originally assigned to the matter determine whether a
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substantial constitutional claim exists as a prerequisite to the convening of a threejudge court.” Id.

The sufficiency of a claim is based on the allegations of the

complaint and a claim is unsubstantiated only when it is obviously without merit or
clearly determined by previous case law. Id. The district judge initially assigned to
the matter has a limited jurisdiction to determine whether such a case shall be heard
by one judge or three judges. Id. The language of § 2284 “is mandatory” and that the
district court must make the initial determination of non-frivolousness, and if it so
finds, the three-judge panel procedure must be followed. Id.
The undersigned’s initial review of the Complaint shows that Plaintiffs have
sufficiently stated allegations that their constitutional rights under the First
Amendment and the Equal Protection Clause were violated.
Plaintiffs allege that “Michigan’s durable and severe partisan gerrymander of
state legislative and congressional districts violates individual Plaintiffs’ First
Amendment free speech and association rights and Fourteenth Amendment equal
protection rights.” (Complaint, Doc. No. 1, Pg ID 2) Plaintiffs further allege that
“[t]he 2011 Michigan redistricting process was a particularly egregious example of
partisan gerrymandering,” claiming that “Congressional and state legislative
districting plans were developed in a private, secret process by Republican
consultants, legislative staff and legislators to the exclusion of Democrats and the
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public.” (Id., Pg ID 2-3)
Plaintiffs state that the Michigan Legislature enacts new districting plans by
statute after every 10-year census. (Id., Pg ID 11) Plaintiffs assert that S.B. 498 and
H.B. 4780, revealed to the public on June 17, 2011, were signed into law on August
9, 2011. (Id., Pg ID 11, 13) S.B. 498 sets forth the district lines for the election of
both houses of the Michigan Legislature (“Current House Plan” or “Current Senate
Plan”). (Id. Pg Id 13) H.B. 4780 sets forth the congressional district lines (“Current
Congressional Plan”). (Id.) Collectively, the plans are referred to as the “Current
Apportionment Plan.” (Id.)
Plaintiffs allege that the Michigan Legislature intentionally tilted the Current
Apportionment Plan heavily against Democrats and in favor of Republicans, “by
cracking and packing Democratic voters, while spreading Republican voters
efficiently across safe Republican districts.” (Id., Pg Id 14) Plaintiffs further allege
that “[s]ome of the districts in the Current Apportionment Plan are oddly shaped as
a result of the gerrymander.” (Id., Pg Id 15) They also allege that, “Michigan’s
Current Apportionment Plan gerrymanders by cracking and packing Democratic
voters, including Plaintiffs.” (Id.)
Plaintiffs state that the burden a gerrymandered legislature imposes on the
representational rights of voters in a given election can be quantified in a variety of
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ways, including the “efficiency gap” which compares the number of votes each party
wastes for any election. (Id., Pg ID 20) They assert that the efficiency gap measures
departures from partisan symmetry, the simple democratic principle that fair maps
generally give a vote for one party the same weight as it gives a vote for the other
party. (Id., Pg ID 21) Plaintiffs claim that political scientists have adopted the
convention that an efficiency gap value of less than zero (negative) means that a
particular plan tilts Republican, and, a positive efficiency gap value means that a
particular plan tilts Democratic. (Id.) Plaintiffs assert that the size of an efficiency
gap measure can support an inference of intentional manipulation of district
boundaries. (Id.) Plaintiffs assert that the “Current Apportionment Plan is the most
pro-Republican partisan gerrymander in modern Michigan history.” (Id., Pg ID 22)
They claim that “[t]he actual efficiency gaps for the 2012, 2014 and 2016 elections
under the Current House Plan were -.14, -.13, and -.10, respectively.” (Id., Pg ID 22)
As to the Current Senate Plan in 2014, they claim that the actual efficiency gap was
“even more extreme, at -.22.” (Id.) They also claim that the Current Congressional
Plan actual efficiency gaps for 2012, 2014, and 2016 were -.20, -.18, and -.15,
respectively. (Id.) Plaintiffs allege that these actual efficiency gaps are among the
“widest” in the country. (Id.)
Based on these specific allegations in the Complaint noted above, and the
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Court’s review of the rest of the Complaint, the Court determines that Plaintiffs have
sufficiently stated substantial constitutional claims in their Complaint. In this initial
review of the Complaint, the Court finds that Plaintiffs’ claims are “non-frivolous”
and that a three-judge court must be convened to determine whether the
apportionment of congressional districts and the apportionment of the statewide
legislative districts violated Plaintiffs’ First Amendment and Equal Protection rights
under the United States Constitution as alleged in the Complaint.
III.

ORDER
For the reasons set forth above,
IT IS ORDERED that Plaintiffs’ Application for Three-Judge Court (Doc. No.

5) is GRANTED.
IT IS FURTHER ORDERED that a copy of this Order is immediately
forwarded to the Chief Judge of the Sixth Circuit Court of Appeals who shall
designate two other judges, at least one of whom shall be a circuit judge under 28
U.S.C. § 2284(b)(1).

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: December 27, 2017

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of
record on December 27, 2017, by electronic and/or ordinary mail.
S/Julie Owens Acting in the Absence of LaShawn R. Saulsberry
Case Manager

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